IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
17TH DAY OF NOVEMBER 2020 SUIT NO: NICN/ABJ/89/2018
BETWEEN
FELIX KAYODE OLAKULEHIN…………………............... CLAIMANT
AND
1. THE NATIONAL OPEN UNIVERSITY OF NIGERIA
2. THE GOVERNING COUNCIL, NATIONAL DEFENDANTS
OPEN UNIVERSITY OF NIGERIA
JUDGMENT
1. By a General form of complaint and a Statement of facts dated and filed on the 5th day of April, 2018, the Claimant is praying this court for the reliefs stated below:
2. They are:-
(a) A Declaration that the Claimant’s employment with the 1st Defendant enjoys statutory flavour.
(b) A Declaration that the purported termination of the Claimant’s appointment as a Research Fellow 1/Lecturer 1 in the Regional Training and Research Institute for Open and Distance Learning (RETRIDAL) department of the 1st Defendant by a purported letter dated 29th August, 2017, without affording the Claimant fair hearing is null and void and of no effect whatsoever.
(c) A Declaration that the purported termination of the Claimant’s appointment as a Research Fellow 1 in RETRIDAL department of the 1st Defendant on the ground of abscondment from duty while studying a PhD program on approval and sponsorship of 1st Defendant is illogical, unreasonable and irregular.
(d) A Declaration that the Claimant’s appointment as a Research Fellow 1/ Lecturer in RETRIDAL department of the 1st Defendant is still valid and subsisting.
(e) A Declaration that the management of the 1st Defendant without the directive of the 2nd Defendant has no powers or authority to set up a committee to investigate the Claimant for an alleged abscondment from duty.
(f) An Order of this Honourable Court nullifying and setting aside the Defendant’s purported letter of termination with reference number NOUN/PER/0123/VOL.11/59 dated 29th August, 2017.
(g) An Order of this Honourable Court setting aside the purported report of the 1st Defendant on the Claimant considered and approved by the 2nd Defendant at its 49th meeting held on Friday 11th August, 2017.
(h) An Order of this Honourable Court mandating the 1st Defendant to immediately pay the Claimant’s monthly salary which had been stopped since June 2015 and any higher sum that the Claimant has become entitled to by reason of annual progression on the Consolidated University Academic Salary Structure (CONUASS).
(i) An Order of this Honourable Court mandating the 1st Defendant to reimburse the Claimant the sum of N 178,481 being the cost of his return flight ticket from UK to Nigeria as undertaken by the 1st Defendant.
(j) An Order of Court awarding 10% interest on the judgment sum in favour of the Claimant against the Defendants being post judgment interest from the date till judgment sum is liquidated by Defendants.
3. In response to the claimant’s claim, the Defendants filed their Statement of Defence on the 16th day of March, 2020, wherein the claimant’s claims were denied.
4. The case of the claimant as can be gathered from the complaint, statement of facts, witness statement on oath and oral testimony is that he was in the employment of the 1st Defendant as a Research Fellow 1/ Lecturer 1 until his appointment was terminated vide exhibit V letter of termination of appointment dated 29th of August, 2017.
5. The Claimant testified in proof of his case as CW1. The claimant after identifying his witness statement on oath of 5/4/2018, adopted same as his evidence in this suit. CW1 also tendered 27 documents in evidence in the course of giving evidence in chief. Under cross-examination by the counsel for the Defendants ten documents were tendered in evidence through CW1 and they were accordingly marked as exhibits.
6. The crux of the claimant’s claim is that he was initially employed by the defendants vide exhibit A, a letter of employment dated 4/7/2003, as an Administrative Officer staff ii (non-academic) staff), the claimant remained on this position until 2006, when he was subsequently appointed an Assistant course coordinator (Academic Staff), in 2007, the claimant was transferred to the regional training and research institute for open and distance learning (RETRIDAL), as a research fellow ii with effect from 21/5/2007. See exhibits B and C. The employment of the claimant was vide exhibit D a letter dated 12/2/2008, confirmed as a permanent and pensionable one with retirement age of 65 years.
7. Following offer of admission to the claimant by Lead University to pursue a Doctoral programme, the defendant approved the claimant’s application for sponsorship. The claimant after securing three years study leave with payment of tuition fees, full salary with increment at normal university rate and transportation to and from the institution of learning. The claimant was also given accelerated promotion. The claimant after securing the necessary sponsorship approval from the 1st defendant proceeded to Lead University in September 2010 for the doctoral programme. See exhibits E, F, G, H, I, J, K and L.
8. In the course of pursuing of his studies, the claimant made several applications/requests to the 1st defendant for extension of his study leave to enables him to complete his programme of study. It was stated while the claimant’s different applications were pending the defendant stopped payments of the claimant’s salary and entitlements. This according to the claimant exposed him to untold hardship and suffering on several occasion, this led to resort to assistance from family members and friends for payment of accommodation and subsistence in the UK.
9. After the various request and approval of study leave extension, the 1st defendant on 9th December 2015 served a letter recalling the claimant to duty on or before 29/1/2016. See exhibit M. On receipt of the letter of recall, the claimant responded vide exhibit N, a letter dated 31/12/2015 with a further request for a final 4 months extension to enable him make corrections and amendments to his on-going thesis which according to the claimant had been successfully frustrated by the 1st defendant’s intermittent stoppage of claimant’s salary, accommodation and subsistence allowances for maximum concentration and full attention on his course of study by the claimant. When no response was forth coming from the defendant, the claimant vide exhibit O wrote on 1/4/2016, appealing for payment of his outstanding salaries and return airfare to Nigeria. According to the claimant the defendant instead of replying his letter, he was vide exhibit P, summoned to appear before a staff disciplinary committee on 20/6/2016. However, the claimant pleaded with the defendant for rescheduling of date for his appearance before disciplinary committee to 24/7/2016. See exhibit Q. Consequently, the date was rescheduled to 26/7/2016. See exhibit R.
10. According to the claimant, as a result of the defendants refusal to pay claimant’s return ticket, the claimant’s parents were compelled to pay the sum of N178,481.00 for claimant’s return ticket to Nigeria. See exhibit S.
11. On arrival claimant went to the venue of the hearing but was told it had been postponed indefinitely and new date will be communicated to him. The claimant stated that he immediately on 26/7/2016 resumed duty at RETRIDAL which was confirmed by letter dated 24/8/2016. See exhibit T. The claimant appeared before the disciplinary committee in August 2016 where he was only asked questions but disallowed by the management committee from presenting any evidence in defence of the allegation of abscondment which were all available at the time of the meeting. All entreaties to the committee to accept claimant’s evidence on regular update on the progress of his study while in UK were all turned down and rejected to enable the management committee to reach a decision they wanted.
12. After the disciplinary meeting and three months of claimant’s resumption of duty without payment of salaries which had been stopped since June 2015, the 1st defendant by a letter dated 14/10/2016 requested the claimant to stay away from duty pending the outcome of a case of abscondment against the claimant. Following the indefinite suspension of the claimant from duty and non-payment of half salary to the clamant on indefinite suspension contrary to condition of service of the 1st defendant, the claimant in January 2017 returned to UK to arrange re-submission of his thesis which had a deadline date of 8th January 2017.
13. On 12/1/2018 a letter dated 29/8/2017 was delivered to the claimant to the effect that his appointment had been terminated. See exhibit V.
14. In line with conditions of service claimant wrote appeal to the Vice-Chancellor and the 2nd defendant, but there is no response till filing of this suit. See exhibits W and X.
15. It is the case of the claimant that the management committee of the 1st defendant does not have power to set up to investigate a senior staff without the directive of the 2nd defendant. The claimant denied ever absconding from duty. The decision of the 2nd defendant to terminate claimant’s employment is a nullity.
16. For the defendants, the claimant is a PhD candidate of Lead University, United Kingdom and a Research Fellow 1/Lecturer 1 in the employ of the 1st Defendant until his appointment was terminated on the 29th day of August 2017. According to the defendants the claimant was sponsored for a doctoral degree at Lead University. The programme to which claimant was sponsored started from the 1st day of October 2010 and terminated on 31st day of September 2013, which was a three years programme. The claimant’s application of sponsorship dated 31/7/2009 is BB1-3.
17. It was after several appeals for reconsideration of the claimant’s application for sponsorship made to the defendants by the claimant and upon fulfilment of the basis for the offer of admission by the University of Leads, United Kingdom, that the defendants approved the claimant’s application for sponsorship vide exhibits DD1-9 and EE1-3, dated 31/8/2009 and 23rd September 2009, respectively. Upon approval of sponsorship parties entered into a training leave agreement dated 26/4/2010. The documents regarding sponsorship and agreement to that effect were tendered and admitted in evidence. The claimant was granted extension of study leave at different times. Vide letter dated 31/5/2015, the claimant was reminded of the expiration of the extension and was advised to resume wok or otherwise his salary will be stopped. The claimant’s salary was stopped due his refusal to resume work as advised. It was stated that the claimant had to be recalled due to his failure to conclude his three years PhD programme and resume duty despite several extensions granted to him to enable him conclude and resume duty. The defendants stated that the claimant did not resume duty until letter dated 1/6/2016 was written to him inviting him to appear before staff disciplinary committee on 20th June 2016, see exhibits P and UU.
18. Vide exhibit DWD, a letter of 13/4/2016, a disciplinary committee was constituted to investigate abscondment from duty. The date the claimant was to appear before disciplinary committee was rescheduled to 26/7/2016. The claimant appeared before the disciplinary committee on 19/8/2016. The committee recommended termination of his appointment and the 2nd defendant approved the termination of claimant because he could not satisfactorily defend himself. See exhibits V.
19. Regarding letter for further extension and letter requesting payment of salaries and air ticket, the defendants stated that instead of replying the letter a committee was set up committee to investigate abscondment of the claimant from duty. It was further stated that there is no obligation to pay claimant’s return ticket after his wilful disobedience to resume work after his study leave expired and he was ordered to resume duty. The defendants also denied the claim of the claimant on resumption of duty on 26/7/2016 at RETRIDAL. It was averred that claimant cannot resume duty any time he liked when he was being investigated for absconding from duty having not resumed when he was advised to resume despite several extensions afforded him to resume. It was also stated that the claimant was not at any time suspended from duty as he did not resume duty since 2013 when his study leave expired and after the final extension had elapsed on 11/5/2015 and he was advised to resume on 31/5/2015.
20. The defendants insisted that the claimant is not entitled to any of the reliefs claimed. The reason being that termination of claimant’s employment was done after his response to the disciplinary committee was not acceptable and the finding of the disciplinary committee was referred to the management and the report of the management was submitted to the 2nd defendant who ratified same. The defendants maintained that the termination of the claimant’s employment was done in accordance with the rules and regulations governing the claimant’s conditions of service with the defendants. The 2nd defendant ratified the decision of the management at its 49th meeting held on 11/8/2017. See exhibits DWE112, DWFF1-12 and DWG1-20.
THE SUBMISSION OF THE DEFENDANTS
21. The Defendants formulated a sole issue for determination, to wit:
‘’Whether the Claimant has proved his case against the Defendants and as such is entitled to the claims made against the Defendants.’’
22. The defendants argued the sole issue based on five questions: they are:
I. Whether the Claimant absconded from duty while in the employment of the 1st Defendant.
II. Whether the Defendants terminated the appointment of the Claimant in line with its extant law, rules and regulation governing it.
III. Whether the Claimant was afforded fair hearing pursuant to the termination of his appointment.
IV. Whether the Claimant has proved his case.
V. Whether the Claimant is entitled to the reliefs sought.
ARGUMENT:
23. On the question, whether the Claimant absconded from duty while in the employment of the 1st Defendant.
24. Eloka J. Okoye, counsel for the defendants, contended that the Claimant absconded from his duty while in the employment of the 1st Defendant and the Defendants validly terminated the employment of the Claimant via a letter dated 29th of August 2017 which is marked as Exhibit DWE 1-12.
25. According to counsel for the defendants the 1st Defendant sponsored the Claimant to pursue a degree leading to an award of Ph.D. in Education at the University of Leeds, UK. The programme was to commence on the 1st day of October 2010 and end on the 31st of September, 2013. Counsel refers the court to the 1st Defendant’s approval for sponsorship dated 12th April, 2010 and his admission letter from Leeds University, United Kingdom. These documents formed part of the bundle of documents marked as Exhibit GG 1-11.
26. Consequent upon the approval for sponsorship the claimant entered into a bond training agreement with the University and produce a guarantor. The bond training agreement is also part of the bundle of documents marked as Exhibit GG 1-11. These exhibits show that the duration of the Ph.D programme approved for the Claimant was for a period of Thirty Six (36) Months. The Defendant did not conclude this programme within the stipulated period. Section 2 (b) of the Training Bond Agreement clearly stated that:
‘’That in the event of failure to pass any examination at the end of the course, the Trainee will make no claim upon the University in respect to any expenses connected with the said course or maintenance in School of Education, University of Leeds, United Kingdom.
27. It is the contention of counsel that the claimant applied for extension of study leave and the Defendants magnanimously obliged and approved same. Exhibits KK 1-3, MM 1-3, NN 1-2, OO 1-12, respectively. By the last extension approved for the Claimant via a letter dated 17th of March, 2015 and marked as Exhibit QQ, the Claimant was asked to resume duty on the 11th of May, 2015. He did not resume as usual therefore, the Defendants wrote him Exhibit RR dated 15th of May, 2015 reminding him that the extension granted to him had expired and he was therefore advised to resume work on or before the 31st day of May, 2015, otherwise his salary shall be stopped and he shall be deemed to have absconded. The Claimant still failed to resume duty on the 31st day of May, 2015. Consequently, the Defendants stopped the Claimant’s salary on the 3rd day of June, 2015. See Internal Memo of 3rd June, 2015 admitted as Exhibit DWB.
28. It was contended by counsel for the defendants that with the stoppage of salary one would have expected the claimant to become reasonable, he did nothing, not even a communication with his Benefactor and Sponsor. Therefore, six months after, precisely on the 9th day of December, 2016, the Defendants was compelled to send a letter of RECALL TO DUTY i.e. Exhibit SS to the Claimant. Despite the communication from the Defendants to the Claimant to resume duty on or before the 29th day of January 2016, the Claimant still failed to resume duty. This according to counsel has established abscondment from duty by the claimant.
29. It is further submitted that the claimant did not only absconded from duty, he came back without the Ph.D Certificate despite the huge sum of money spent on him and the salaries and allowances paid to him while he was away in the United Kingdom purportedly pursuing a Ph.D program. It is further contended till this very minute, i.e. over ten years from the year 2010 when the Claimant left the shores of this Country in search of a Ph.D Certificate, he does not possess any Ph.D Certificate. When he was asked under cross-examination whether he has gotten the Ph.D Certificate from University of Leeds, UK, he answered in the negative and stated that the programme was put on hold. One of his supervisors at Leeds University, United Kingdom, Professor Linda Evans wrote a confidential report dated 17th April, 2012 and marked as Exhibit DWC 1-2. Wherein she stated in no uncertain terms that the Claimant was finding it difficult understanding the THEORETICAL ASPECT of his program.
30. It is clear that the Claimant started the Ph.D. program in 2010 which was 10 years ago and till date, he is yet to obtain the certificate because he failed the program and his inability to pass his examinations and earn a Ph.D certificate was not as a result of the Defendants’ fault as the claimant tends to portray in paragraph 16 of his Statement of claim. It is submitted that this allegation from the Claimant is unfortunate and uncalled for. It is on record and the Claimant confirmed same under cross-examination that subsistence allowance was not part of the original allowance approved for him, yet when he requested for same after he commenced his programme, the Defendants approved same and dutifully paid same. It is also on record and the claimant confirmed same under cross-examination that he usually sent his request for school fees and other allowances at the beginning of each year within the duration of his program and the Defendants paid same dutifully. It is also in evidence and the Claimant confirmed same that his salary was stopped on the 3rd day of June 2015, when he failed to resume duty as instructed. It is also clear that the confidential report of his Supervisor i.e. Exhibit DWC 1-2 was in 2012 two years into his three years program and three years before his salary and not School fees and allowances was stopped. It is therefore unfortunate and ungrateful of the Claimant to find it convenient to make such allegation against the Defendants, who spent huge amount for his training instead of blaming his inability to understand the theoretical part of the program he went to undertake, Exhibit DWC1-2 is so clear on that and we urge the Court to so hold.
31. Counsel concluded submission on this by urging the court to hold that that the termination of the Claimant’s appointment as a Research Fellow 1 in RETRIDAL Department on the ground of abscondment of duty was rightfully done and is valid.
32. On the question of whether the Defendants terminated the appointment of the Claimant in line with its extent Laws, Rules and Regulations governing it.
33. Counsel for the defendants contended that the position of the Court was succinctly stated in the case of University of Lagos v. Olaniyan (1985) 2 NWLR (Pt. 9) 599, and it is to the effect that an employment with statutory flavour shall be terminated in line with the extant laws and provisions governing it. Counsel also relied on the Court of Appeal case of Obaje V N.A.M.A (2013) 11 NWLR ( Pt.1365) Pg 377 at Pg. 304 paras D- F per Iyizoba JCA.
34. The Defendants submit that the appointment of the Claimant which was terminated via a letter dated 29th of August, 2017 and marked as Exhibit DWE 1-12 was in accordance with its extant Rules and Regulations governing the Conditions of Service of Senior Staff in the employment of the Defendants, exhibit DWA, which was made pursuant to Section 6 (b) of the National Open University Act 1983 states that;
‘’Nothing in the foregoing sections shall prevent the Council from making regulations for the discipline of other category of workers of the University, as may be prescribed.
35. Counsel refers to Section 1.3 of the Exhibit DWA, which provides that “these conditions shall apply to all senior staff of the National Open University of Nigeria and furthermore by Section 1.7.20, “senior staff” means employees of the National Open University of Nigeria on Salary level CONUASS 1-7 (Academic) on CONTISS 06-15 (Non- Academic).
36. The Defendants submit that the Claimant who was a Research fellow 1/ Lecturer 1 in the Regional Training and Research Institute for Open and Distance Learning (RETRIDAL) department of the 1st Defendant (confirm) was a senior staff and thus subject to Exhibit DWA.
37. Section 3.2 of Exhibit DWA provides that:
38. The power to exercise disciplinary control over members of staff of the University shall, in accordance with the Act, be vested in the Vice Chancellor and the University Council.
39. It shall be the duty of the appropriate Dean/Director/Head of Department to report to the Registrar in writing any case of misconduct on the part of any member of his staff that comes to his/her notice.
40. The Registrar, on the receipt of such a report shall forthwith forward it to the Vice Chancellor with his or her comments and the Vice Chancellor shall after conducting such enquiries as he/she may deem fit, take appropriate action and report to the Council.
41. Where a report of a disciplinary matter has been made by the Vice Chancellor to the Council, the Council may accept the report of the Vice Chancellor or set up an Adhoc Committee to investigate and report to the Council. (Emphasis Ours)
42. Counsel contended that the procedure elucidated above in Section 3.2 of the Exhibit DWA, was observed before terminating the appointment of the Claimant. In fact, it was the 2nd Defendant that approved the termination of the Claimant’s Appointment.
43. On the failure of the Claimant to resume duty after the Defendant issued a letter of recall to duty to him (Exhibit SS), the Vice Chancellor of the 1st Defendant constituted a Committee to investigate the case of abscondment against the Claimant. Counsel refers the court to Exhibit DWD. The Committee was charged with investigating the case of abscondment against the Claimant and to make appropriate recommendations to the management of the Defendants. The Committee sent a letter of invitation to the Claimant. The said letter is marked as Exhibit UU, to appear before it to defend himself on the allegation of abscondment of duty levelled against him. The Committee also adjourned the investigation meeting to afford the Defendant opportunity to appear in person to further defend himself. Counsel refers to Exhibit TT.
44. The investigative plenary could not hold on the 26th day of July, 2016 as rescheduled in Exhibit TT, however it held on the 19th day of August, 2016, wherein the Claimant was present. The Claimant was also afforded an opportunity to defend himself and was asked questions by the Disciplinary Committee. The Disciplinary Committee concluded its investigations and submitted in its report that the Claimant is liable of absconding from duty, more so the Claimant failed his Ph.D. program and should be made to return all monies expended on him. The report of the Disciplinary Committee was forwarded to the Vice Chancellor through the Management of the 1st Defendant who adopted same. The Vice Chancellor of the 1st Defendant also forwarded the report to the 2nd Defendant. See exhibit marked as Exhibit DWE 1-12.
45. The 2nd Defendant’s at its 49th meeting held on the 11th day of August, 2017 considered the report of Management (which adopted the report of the Disciplinary Committee), approved the report and approved the recommended termination of the Claimant effective from the 15th day of June, 2015 when he was deemed to have absconded from duty. The letter of termination of appointment is part of the bundle of documents marked as Exhibit DWE1-12.
46. In the light of the above, counsel urged the court to declare that the termination of the Claimant’s appointment followed the due process stipulated by the Rules and Regulations governing the Conditions of Service of Senior Staff and the letter of termination of the Claimant’s appointment dated 29th of August, 2017 and marked as Exhibit DWE1-12 is valid and subsisting and thus the Court should dismiss this suit in its entirety.
47. On the question, whether the Claimant was afforded fair hearing pursuant to the termination of his appointment.
48. It is the contention of counsel that the Claimant was afforded fair hearing by the Disciplinary Committee before it came to a conclusion that the Claimant absconded from duty and the reasons adduced by the Defendant were not sufficient. On this view counsel relied on the case of Abubakar Tatari Ali Polytehnic V Maina (2005) 10 NWLR (Pt.934) Pg. 487 at 510 paras D-F, where the Court of Appeal per Sanusi JCA (as he then was) stated that
It needs to be stated that the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing, Rather it is whether a party who is entitled to be heard before deciding had in fact actually been given an opportunity of being heard. See General Oil ltd. V Ogunyade (1997) 4 NWLR (Pt 501) 613; Isamade v Okei (1998)2 NWLR (Pt 538) 455; Adamu v Sadi (1997) 5 NWLR (Pt 504) 205; Orugbo v Una (1997) 8 NWLR (Pt. 516), 255.
49. It is contended that the Defendants by a letter dated 1st of June 2016 (Exhibit UU) invited the Claimant to appear before a Disciplinary Committee set up to investigate the case of absconding from duty against him. The Claimant was given the opportunity to appear in person or send his written submissions to the Disciplinary Committee by mail. The Claimant via a letter dated 19th of June, 2016 and admitted in evidence, marked as Exhibit Q sent his written submissions to the Disciplinary Committee.
50. Counsel contended fair hearing need not be oral a written response will suffice. On this counsel relied on the decision in the cases of A.T.A Poly v. Minna Supra, Umoh v. Industrial Training Governing Council (2001) 4 NWLR (Pt. 703) 281; Olatubosun v N.I.S.E.R (1986) 3 NWLR (Pt.29) 435; Olatubosun v N.I.S.E.R (1988) 3 NWLR (Pt.80) 25.
51. The Defendants submit that the Claimant was given fair hearing at the plenary session carried out by the Disciplinary Committee. The Claimant in addition to being allowed written submissions was also allowed to make submissions in defence of himself in person before the Disciplinary Committee before he was asked questions by the Disciplinary Committee. Counsel refers the court to the report of the Disciplinary Committee admitted in evidence as Exhibit DWG 1-20.
52. The Claimant cannot turn around and seek to invalidate the decision of the Disciplinary Committee because it was not in his favour on the ground that he was not afforded fair hearing when the evidence before this Honourable Court and his answers under cross-examination in Court are clear that the Defendant was afforded fair hearing and we urge the court to so hold and dismiss the suit of the Claimant.
53. On the question, whether the claimant has proved his case, counsel contended that it is a well-established principle of law that a claimant must succeed on the strength of his case, he must not rest on the weaknesses if any, of the Defendants’ case. This position of the law is stated in Section 131 of the Evidence Act. Furthermore, the position of the Court on the burden of proof to be adduced by an employee claiming wrongful termination of employment was succinctly stated in the case of Katto v. C.B.N (1999) 6 NWLR (Pt. 607) pg. 390 at page 405 paras B-D where Uwaifo JSC (as he then was) held that:
It is the law that when an employee complains that his employment has been wrongfully, he has the onus, first, to place before the Court the terms of the contract of employment and second to prove in what manner the said terms were breached by the employer. It is not in principle for the employer who is a defendant to an action brought by an employee to prove any of these. The principle has been laid down by this Court in many cases including specifically in Amodu v Amode (1990) 5 NWLR (Pt.150) 356, followed in Iwuchukwu v. Nwizu (1994) 7 NWLR (Pt.357) 379 at 412. In Amodu v Amode supra, Agbaje J.S.C who read the leading judgment observed at page 370:
a. “…. It appears clear to me that since it is the plaintiff’s case that his dismissal by the defendant is not in accordance with the terms and conditions of the conditions of the contract of service between them it is for the plaintiff to plead and prove the conditions of service regulating the contract of service in question.”
54. This position of the Court was also upheld by the Supreme Court in Ibama v S.P.D.C. (Nig.) Ltd. (2005) 17 NWLR (Pt. 954) pg. 364 at 378 and 379 and Aji v C.B.D.A (2015) 16 NWLR (Pt. 1486) Pg. 554.
55. Also, the Supreme Court in Aji v C.B.D.A supra per M.D. Muhammad JSC stated that:
The law requires the appellant on the basis of the relief he seeks, to plead and prove his claim. The burden of proof on him to establish these declaratory relief to the satisfaction of the court is quite heavy in the sense that the reliefs being declaratory are never granted even on the admission by the defendant where the plaintiff in the instant case has failed to establish his entitlement to the declaration by his own evidence… The plaintiff succeeds on the strength of his own case and nothing else. See CPC V INEC (2012) 2-3 1, 13 NWLR (Pt. 1317) 260; A.G. Cross River State v. A.-G. Federation &Anor (2012) 16 NWLR (1327) (425).
56. The Defendants submit that the Claimant has failed to prove his case. The Claimant failed to prove by cogent and credible evidence that he did not abscond from duty while in the employment of the 1st Defendant, that he was not afforded fair hearing to defend himself on the allegation of absconding from duty and the Defendants did not comply with Exhibit DWA in terminating the employment of the Defendant.
57. The case of the Claimant is that his employment was terminated while he was on sponsorship to the University of Leeds (UK) for a PhD Program which was to take effect from the 1st day of October 2010 to the 31st day of October 2013. The Defendant granted the Claimant extensions of study leave to complete his program 3 times and the Claimant still failed to complete same. The Defendant stopped the salary of the Claimant and recalled him to duty and he still failed to resume duty. Thereafter the Defendants in line with Exhibit DWA which stipulates the procedure to be followed in termination of the appointment of a Senior Staff of the 1st Defendant terminated the Claimant’s employment.
58. The Claimant has failed to show this Honourable court by credible and cogent evidence that he did not abscond from duty and that due process was not followed by the Defendants in the termination of his appointment. On the contrary, the Defendants by its statement of defence, witness statement on oath and exhibits tendered has been able to prove to the Court that the termination of the Claimant’s appointment was on solid grounds and was done in accordance with the Rules and Conditions governing the Claimant’s Condition of Service with the Defendants and counsel urged the court to so hold and dismiss the Claimant’s suit in its entirety.
59. On the question, whether the Claimant is entitled to the reliefs sought. It is the contention of counsel that the position of the law was reiterated in Organ v. N.L.N.G Ltd. (2013) 16 N.W.L.R (Pt.1381) Pg. 506 at 538 -539 paras H where, M.D. Muhammad J.S.C. stated that;
It remains my considered view that reliefs are granted to a plaintiff if he succeeds in proving his claim. Failure to do that disentitles the Plaintiff to the reliefs which are dependent on the worthiness of the claim in the first place.
60. Counsel contended that the Claimant is not entitled to all of the reliefs sought except relief number one that his employment is with statutory flavour. Counsel urged the court to so hold.
61. It is contended the Claimant has failed to prove that the termination of his appointment is invalid and did not follow due process and thus, he is not entitled to be reinstated. He is also not entitled to any purported monthly salary because same was validly stopped by the Defendants in June 2015 when the Claimant was deemed to have absconded and his appointment was terminated via a letter dated the 29th day of August, 2017- Exhibit DWE 1-12 which termination took effect from June 2015 when the Claimant was deemed to have absconded and we urge the Court to so hold. Flowing from the same vein, the Claimant is also not entitled to any post interest judgment sum.
62. It is also contended that there was no obligation on them to pay the Claimant’s return flight ticket after his wilful disobedience to resume duty after he was ordered to resume. Furthermore the Claimant could not make any demand on the Defendant having failed to honour the training bond agreement marked as Exhibit GG 1-11, which specifically stated;
“ that in the event of failure to pass any examination at the end of the course, the Trainee will make no claim upon the University in respect to any expenses connected with the said course or maintenance in School of Education, University of Leeds, United Kingdom”,
63. Thus Defendant was not obliged to make any payments to the Claimant having failed his Ph.D. programme for which the Defendants sponsored the Claimant.
64. It is also contended that the Claimant is not entitled to be reinstated in the employment of the 1st Defendant having absconded from duty and his employment validly terminated, counsel urged the court to so hold. On this submission counsel relied on the case of Osakwe v. Federal College of Education (TECH) Asaba & 2 Ors (2002) 7 NWLR (Pt 765) Pg 222 at P. 241 paras B-F.
65. Counsel concluded his submission by urging the court to hold that:
I. The Claimant was guilty of absconding from duty while in the employment of the 1st Defendant.
II. The appointment of the Claimant was validly terminated by the Defendants in accordance with the Rules and Regulations of Service governing the Senior Staff of the 1st Defendant.
III. The Claimant was afforded fair hearing before the termination of his appointment.
IV. The Claimant has failed to prove his case.
V. The Claimant is entitled only to his relief number one which is a declaration that the Claimant’s employment with the Defendants enjoys statutory flavour.
66. Counsel urged the court to dismiss this suit for lacking in merit and award the Defendants the cost of defending same which is assessed at the sum of N5,000,000.00 (Five Million Naira Only).
THE SUBMISSION OF THE CLAIMANT:
67. The claimant submitted a single issue for resolution by the court, to wit:
‘’Whether claimant has proved his case to be entitled to the relief sought in this suit.’’
68. In arguing the sole issue Akinyemi Olujimi, Esq; counsel for the claimant contended that it is settled law that where an appointment is one which is regulated by statute, the only method approved in law to terminate the employment is by strictly following the provisions of the statute. On this sub,ission reliance was placed on the case of Bamigboye V University of Ilorin (1999) 10 NWLR pt 622, 290 where the Supreme Court held as follows that;
“the only way to terminate such a contract of service with statutory flavor is to adhere strictly to the procedure laid down in the statute i.e the case in hand, the University of Ilorin Act. See also Olaniyan V University of Lagos (No 2) (1985) 2 NWLR pt 9, 599; Shitta-Bey V Federal Public Service Commission (1988) 1 SC 41 at 56”.
69. It is contended that the claimant pleaded at paragraph 4, 5 and 6 of his statement of fact that he was initially appointed as an administrative staff of the 1st defendant in 2003 and remained in that position until 2006 when he was subsequently appointed as an Assistant Course Coordinator (Academic Staff) in the Center for continuing Education and Work Place Training of the defendants. Furthermore, that his employment with the 1st defendant after satisfactory probation period was confirmed into a permanent and pensionable one with retirement age set at 65 years.
70. The defendants unequivocally admitted claimant’s paragraphs 4, 5 and 6 of the statement of facts. The law is settled that what is admitted needs no further prove. Yet, the claimant at the trial tendered exhibit D which confirmed the permanence and protection of his employment with the 1st defendant.
71. It is the contention of counsel that section 14 of the National Open University Act 1983 (hereinafter referred to NOUN Act) deals with the removal and discipline of academic, administrative and technical staff of the 1st Defendant provides.
72. It is contended by counsel that Section 3.3.1 (vi) of the Regulations Governing the Condition of Service of Senior Staff of the 1st defendant 2009 exhibit DWH at pages 19 to 20 incorporates the exact provision on the removal and discipline of administrative, academic and technical staff of the 1st defendant as provided in the NOUN ACT in the Regulations without any addition or subtraction.
73. It is contended that a subsidiary legislation/regulation like exhibit DWH, derives its validity and authority from the principal statute. Thus, if there is any provision in the subsidiary legislation/regulation inconsistent or beyond the provisions of the principal statute, such a provision in the regulation would be void to the extent of its inconsistency. In support of this view counsel refers to the case of Governor of Oyo State & Ors V Folayan (1995) LPELR-3179 (SC), where it was held that:
“A subsidiary legislation derives its validity and authority from a substantive law, in this case, exhibit 7 deriving its authority from the Chiefs law of Oyo State as it does, has not the capacity to extend such authority. See Dim V Attorney General of the Federation (1988) 4 NWLR pt 87, 147. Nor has it ever been the case for the provisions of an ordinary statute to render nugatory the relevant provisions of the Constitution. See Ishola V Ajiboye (1994) 6 NWLR pt 352, 506 at 621”.
74. It is further contended section 3.1.1 of the Regulation Governing the Condition of Service of the Senior Staff of the 1st defendant 2009, exhibit DWH at page 17 in deference to the settled principle of law and plethora of decisions of the Supreme Court cited above provides clearly that,
“Disciplinary proceedings shall be initiated in accordance with the provision of the 1983 Act establishing the National Open University and as may be amended from time to time”.
75. Notwithstanding the provision of section 3.1.1 of the condition of service exhibit DWH to the effect that Disciplinary proceeding shall be initiated in accordance with the provision of the 1983 Act of NOUN, the law is also trite that where a statute has provided a particular mode of performing an act, only that mode of performing the act is competent. It must be strictly complied with. Please see the Supreme Court in Abubakar V Nasamu (No2) 2012, 17NWLR pt 1330, SC 523, 577. See also C.C.B (Nig) Plc V AG Anambra (1992) 8 NWLR pt 261, SC528.
76. It is submitted by the force of the NOUN Act 1983 the sole authority permitted to initiate a disciplinary removal proceeding against the claimant is the Council of the 1st defendant who is the 2nd defendant in this suit. Thus, the Council is the only authority vested with powers under section (14) 1 of the NOUN Act to issue notice of reasons against the claimant for his removal from office on ground of misconduct or inability to perform the function of his office or employment.
77. It is the submission of counsel that where provision of a statute is clear, it is the duty of the Court to interpret it by giving the plain words their ordinary interpretation without more. In support of this postulation counsel relied on the case Kraus Thompson Org V N.I.P.S.S (2004) 17 NWLR (Pt.901), 44 SC. Furthermore, where a statutory provision or law has been interpreted by a higher court, the lower Courts are bound to follow the interpretation. Please see Benson Okechukwu Nnoli & Anor V Emmanuel Chukka Nnoli &Anor (2013) LPELR 20633. See also Taiwo V Adegboro & Ors (2011) 6 SCM 159 @173.
78. It is contended by counsel that the Supreme Court in Bamgboye V University of Ilorin (1999) 10 NWLR (Pt.622) @ 290 pp 342 para B, 345 paras D-E while interpreting section 15 of the University of Ilorin Act which is in pari materia with section 14 of the NOUN ACT held;
“By virtue of section 15 of the University of Ilorin Act, the power to remove a member of the academic or administrative or professional staff of the University other than the Vice-Chancellor from office on ground of misconduct or inability to perform the functions of his office is vested only in the Council”.
79. In the instant case, there was no notice of reasons given to the claimant in this suit by the Council while the Council never afforded the claimant opportunity to make representations to the Council in person on the matter of his removal from office as expressly stated and provided in the NOUN Act. Thus, the purported termination of the appointment of the claimant is void ab initio. It is contrary to Section 14 of NOUN Act, the Defendants in a futile attempt in support of paragraph 20 of their joint statement of defence tendered exhibit DWD dated the 13th April 2016 to prove that the defendants set up a committee to investigate the claimant as opposed to the averment of the claimant at paragraph 18 of the statement of fact that it was the 1st defendant that set up the Disciplinary committee. During cross-examination of the sole witness of the defendants, exhibit DWD was demonstrated through the witness and he confirmed to the Court that the purported Staff Disciplinary Committee was constituted by the Vice-Chancellor of the 1st defendant as opposed to the 2nd defendant that is vested with the power under the NOUN Act.
80. It is the contention of counsel that the Vice-Chancellor of the 1st defendant has no power or authority under the NOUN Act and exhibit DWH, the Regulations Governing Conditions of Service of Senior Staff of the 1st Defendant 2009 to set up a Staff Disciplinary Committee to investigate the claimant for misconduct or inability to discharge the functions of his office. It is contended that the lone disciplinary power of the Vice-Chancellor of the 1st Defendant may exercise under section 14 (2) of the NOUN Act is limited ONLY to suspension of the claimant for misconduct and report of same to the Council. Nothing more.
81. It is contended even though exhibit DWD presented by the defendants confirmed that the Vice-Chancellor on his own set up the purported Staff Disciplinary Committee to look into the allegations against the claimant. The said exhibit DWD with respect appears to be an afterthought as it runs contrary to the letter of invitation to appear before the Staff Disciplinary Committee, suspension letter and termination letter issued, addressed and sent to the claimant.
82. It is contended a perusal of the claimant’s letter of invitation to appear before the Staff Disciplinary Committee exhibit P tendered by claimant in his examination-in-chief and the certified true copy exhibit UU tendered through claimant during his cross-examination by the defence counsel confirmed that the committee that purportedly investigated the Claimant was set up by the Management of the 1st defendant as opposed to the Vice-Chancellor of the 1st defendant. The said exhibits P & UU was put to the DW1 under cross-examination and he confirm paragraph 4 which reads thus;
“Consequent upon the above, Management set up a Committee to investigate the cause of your continuous failure to return to your duty post and I have been directed to write and invite you to appear before the said Committee on date, venue and time as follows”.
83. The suspension letter exhibit U dated 14th October 2016, which ordered the claimant to stay away from duty after his resumption was also put to DW1 under cross-examination. Paragraph 3 of the said letter reads thus;
Consequently, Management has directed that you be informed to stay away from duty pending the outcome of the committee investigating the case of abscondment levelled against you.
84. Furthermore, the letter of termination of the appointment of the claimant exhibit V signed by the DW1 on behalf of the defendants and also put to him under cross-examination for his confirmation was very clear and reads thus;
NATIONAL OPEN UNIVERSITY OF NIGERIA
REF: NOUN/PER 0132/VOL.II/59
29th August, 2017
Mr Felix Kayode Olakulehin
RETRIDAL
National Open University of Nigeria,
14/16 Ahmadu Bello Way,
Victoria Island,
Lagos.
Dear Mr. Olakulehin
TERMINATION OF APPOINTMENT
This is to inform you that the University Governing Council at its 49th Meeting held on Friday 11th August, 2017 considered the report of Management on your abscondment from duty and approved the termination of your appointment for services no longer required with effect from 1st June, 2015 being the date you effectively absconded from duty.
You are therefore required to hand over all the University’s property in your possession, including your staff identity card, to Director, RETRIDAL, before your departure.
The Bursar is by a copy of this letter, requested to pay you one month salary in lieu of notice in line with your condition of appointment
Thank you
John J. Ubaji
Deputy Registrar (HR/SS)
For: Registrar
85. It is the contention of counsel that while there is no definition of Management in the NOUN Act or Regulations Governing the Condition of service of senior staff of the 1st Defendant, the term Senior Management is defined in the exhibit DWH as follows; Senior Management: means National Open University of Nigeria officials that hold senior responsibility positions in the administration of the various sections of the University, which includes the Vice-Chancellor, Deputy Vice-Chancellors, Registrar/Director, Administrative Services, Deans, Heads of Units, Directors of Special Units, Programme Leaders, Deputy Registrars, and Study Centre Managers.
86. Counsel also submitted, assuming without conceding that the Management and the Vice Chancellor of the 1st defendant are synonymous or used interchangeably as the former is the head and most senior of the Management body as shown above, it is submitted that neither the Vice Chancellor nor the Management is authorized by the NOUN Act and the condition of service to initiate proceedings for the removal of the claimant from office.
87. While there was no directive given to the Vice Chancellor or the management of the 1st defendant by the 2nd defendant (Council) to set up the purported Staff Disciplinary Committee to investigate the claimant, the NOUN Act makes no provision for Council’s ratification or approval of termination of appointment of claimant by the 1st defendant as shown in exhibit V reproduced above. The law is trite that no one can read into a provision of a statute what is contained therein. Thus, the purported approval of the termination of the appointment of the claimant by the 2nd Defendant based on the decision of the Management of the 1st defendant without recourse to the NOUN Act is a nullity is law. The duty imposed on the Council under section 14 (1) (a) (b) &(c) of the NOUN Act on receipt of any report from the 1st defendant in respect of removal of claimant from office or employment on the ground of misconduct or inability to discharge the function of its office, is to issue notice and afford the claimant opportunity to be heard in person before the Council after which a committee may be set up to investigate the claimant. The Council may then decide to remove the claimant from office after receiving the report of the committee set up by the Council.
88. Thus, in accordance to section 14 (1) (c) (i) of the NOUN Act, the only report the Council can consider to terminate the appointment of the claimant for misconduct or inability to discharge the function of his office is the report of the joint committee of the Council and Senate and not the report of the 1st defendant’s Management committee as purported in exhibits DWE1-12, DWG1-20 and V.
89. The 2nd defendant having not commenced any disciplinary proceedings for the removal of the claimant from office in accordance with the NOUN Act cannot validly terminate and/or approve the termination of appointment of the claimant as purported/recommended by the management of the 1st defendant in this case. The law is settled that you cannot put something on nothing and expect it to stand. Please see Mac Foy V UAC 1961) 3 WLR 1405 at 1409.
90. It is contended by counsel that the whole decision reached by the Management based on the Staff Disciplinary Committee set-up by the Vice-Chancellor of the 1st defendant and the purported approval of same by the 2nd Defendant is null and of no effect for being contrary to the procedure laid down in the NOUN Act and the Condition of service of the claimant for his removal from office.
91. To make matters worse the purported Staff Disciplinary Committee set up by the 1st defendant never afforded the claimant fair hearing in the process of investigation of the allegations against the claimant.
92. The Staff Disciplinary Committee set up by the Vice-Chancellor on the 13th April 2016 pursuant to exhibit DWD had 3 terms of reference to wit;
I. To investigate into the case of abandonment involving a staff (Mr Felix Kayode Olakulehin) in RETRIDAL.
II. To make appropriate recommendations to Management.
III. To submit report on or before 13th May 2016.
93. The claimant was initially summoned to appear before the Staff Disciplinary Committee on the 20th June 2016 as shown in exhibit P. The Claimant by his letter of 19th June 2016 exhibit Q requested for the rescheduling of the meeting to the 26th July 2016. The 1st defendant acceded to the claimant’s request and rescheduled the meeting to 26th July 2016 as shown in exhibit R.
94. On the 26th July when the claimant arrived Nigeria from UK and attended the venue of meeting, he was surprised to be informed that the meeting had been postponed till further notice without notice to him.
95. It is contended by counsel that preposterously and comically, the Staff Disciplinary Committee of the Vice-Chancellor had submitted its Report of Staff Disciplinary Committee (SDC) on a Case of Abscondment Levelled Against the claimant, exhibit DWG1 to the Management before the deadline of 13th May 2016 as mandated by the terms of reference of the Vice-Chancellor in exhibit DWD while the report had also been considered and approved by the Management of the 1st defendant at its 66th Regular meeting held on the 19th May, 2016 as confirmed in exhibit DWE1 which was prior to the issuance of the invitation/summons to the claimant to appear before the Staff Disciplinary Committee in June, July and August 2016. Exhibit DWE1 internal memo dated 8/11/2016, from Registrar to pro-Chancellor, decision of management presented to 2nd defendant for ratification. This was without affording the claimant fair hearing on the matter, the committee completed its assignment before the 13th May 2016 deadline stated in the terms of reference and recommended termination of claimant’s appointment to the Management of the 1st defendant which was approved. The committee’s decision and approval of the Management in this instance was a violent breach of the right of claimant to fair hearing and a nullity in law. Counsel urged the court to hold so.
96. Besides the breach of claimant’s right to fair hearing, the Management of the 1st defendant arrogated powers it does not possess under the NOUN Act or the condition of service by purportedly terminating the appointment of the claimant as stated in the heading and paragraphs 4 & 5 of exhibit DWE1. Thus, the purported termination of the appointment of the claimant by the Management of the 1st defendant as shown in exhibit DWE1 is ineffective and void under the NOUN Act. In support of this contention counsel relied on the case of Bamgboye V University of Ilorin (Supra) where it was held per Onu JSC at pages 329-330 paras H-B;
“Under Section 15(1) (c) of the Act, Council in appropriate cases can constitute a joint committee on it to the Council. Be it noted however that the Committee can only investigate the matter and report on it to the Council. The Committee has no power to take a final decision. Only the Council can do that.
97. The Staff Disciplinary Committee of the 1st defendant in this case is inferior to the joint committee of the Council and Senate which cannot take a final decision on the removal of the claimant. Thus, the purported final decision of the Management Committee of the 1st defendant has no legs to stands in the circumstance. Furthermore, the law is trite that a delegate cannot delegate its statutory disciplinary powers Please see Bamgboye V UniIlorin (Supra) p 329 para G-H, 352 C-D D-F where Onu JSC held as follows;
“Undoubtedly, the power of Council under Section 15(1) of the University of Ilorin Act Cap. 455, Laws of the Federation of Nigeria 1990, is a statutory disciplinary power to remove and discipline an erring academic, administrative and professional staff of the University. In this regard, it is trite law that a statutory disciplinary power cannot be delegated. See Vine v. National Dock Labour Board (1956) 3 All E.R. 939 , where in the final appeal to the House of Lords it was held that the Plaintiff's dismissal by a Committee set up by the Local Board under a delegated power to the Committee set up by the Local Board was a nullity because the Local Board had no power to delegate its disciplinary powers”
98. Thus, the Management Committee has no powers or any authority to terminate the appointment of claimant as purported in exhibit DWE1.
99. It is important to also state that after the Staff Disciplinary Committee set up by the Vice-Chancellor completed its assignment and made recommendations to the Management in accordance to its terms of reference on or before the 13th May 2016 which was subsequently approved by the Management at its Regular meeting of 19th May 2016, there was no other committee set up again by the Vice-Chancellor after the Staff Disciplinary Committee had completed it assignment and recommendations to the Management as mandated the terms of reference. Similarly, there was no extension of the period the Staff Disciplinary Committee would complete its assignment by the Vice-Chancellor that set-up the Committee to accommodate and investigate the allegations against the claimant at the meetings scheduled to hold in June and July 2016 and the meeting that was purportedly held in August 2016.
100. Therefore, the subsequent issuance of invitations to the claimant to appear before the Staff Disciplinary Committee in June, July and August 2016 as shown in exhibits TT and UU after the committee had completed its assignment and made recommendations to the Management to terminate claimant’s appointment pursuant to its term of reference which had been approved by the Management at its 66th Regular meeting on the 19th May 2016 was ineffectual, of no consequence in law and cannot not cure the breach of right to fair hearing of the claimant.
101. It is submitted that the Staff Disciplinary Committee as at 13th May 2016 was functus officio and without jurisdiction to elongate its life span outside its terms of reference without the sanction of the Vice-Chancellor that purportedly set up same.
102. Assuming without conceding that the Vice-Chancellor or the Management of the 1st defendant had a right to establish a disciplinary committee to investigate the claimant, another breach or violation of the provision of the NOUN Act was the failure of the defendants to put the claimant on half salary after his suspension and non-determination of the case of the claimant by Council within 3 months as provided in section 14 (4) of the NOUN Act and section 3 paragraphs 3.3, 3.3.1 (vi) , (vi) at page 18, 19, 20 and 21 of the condition of service exhibit DWH.
103. It is contended from the evidence at the trial, the full salary of the claimant was stopped by the 1st defendant in 2015 without any suspension by the Vice-Chancellor of the 1st defendant while he was still on study leave.
104. After the claimant resumed duty in July 2016 and notified the 1st defendant who asked him to stay away from duty, half salary was not paid to the claimant in breach of the statute that regulates the procedure for discipline and removal of a staff from office.
105. Furthermore, the Council itself failed to come to a final determination of the case against the claimant within 3 months as provided under section 14 of the NOUN Act and section 3 at page 20 and 21 of the Condition of service exhibit DWH.
106. It is contended the claimant’s meeting with the staff disciplinary committee eventually held in August 2016 while the purported termination of appointment of the claimant was by a letter dated 29th August 2017 as shown in exhibit V. Thus, the 2nd defendant’s decision to terminate the appointment of the claimant after 12 months as opposed to 3 months provided in the NOUN Act is also in breach of the procedure laid down in the statute.
107. It is also contended the strict procedure provided by the (NOUN Act) was 100% honoured in breach by the defendants and same makes the purported termination of the appointment of claimant unlawful, invalid, irregular and of no effect in law. On this contention counsel refers to Idoniboye-Obu V N.N.P.C (2003) NWLR pt 805 SC 589 where it was held as follows;
“In the Olaniyan’s case, apart from the Memorandum of Appointment which was an agreement containing the terms and conditions of service, there was the University of Lagos Act, 1967. Under section 17(1) of that Act, provisions for disciplinary measures against categories and staff are made. The Act sets out the procedure that must be followed to remove such employees from service. When the mandatory procedure is not complied with, any disciplinary action taken against them will be declared null and void. It is those statutory provisions that are regarded as giving them some measure of security and protection. This is the proper sense in which it is said that that kind of employment has statutory flavor. It cannot be easily determined as that of mere servant not having protective statutory provisions were applied also to nullify improper dismissal, termination or retirement in cases like Shitta Bey V Federal Public Service Commission (1981) 12 NSCC 28; Eperokun V University of Lagos (1986) 2 NWLR pt 106, 652”
108. It is the contention of counsel that taken for granted and for academic purposes that the defendants followed the procedure laid down in the NOUN Act, the purported termination of appointment of the claimant on ground of abscondment is illogical, irregular and absurd. The claimant was on sponsorship of the 1st defendant for his PhD programme in Leeds UK. The 1st defendant as part of its obligation agreed to transportation (air fare ticket) to and from the institution of learning for the claimant’s study in the University of Leeds, UK as contained in exhibit H. The 1st defendant and claimant were in constant communication regarding the academic progress and welfare of the claimant in UK.
109. The 1st defendant in breach of the NOUN Act and condition of service stopped the salary of the claimant in 2015 without placing him on half salary in accordance to the NOUN Act. The 1st defendant by his letter of 9th December 2015 admitted as exhibits M and SS requested the claimant to return to duty on or before 29th January 2016.
110. The claimant on receipt of exhibits of M & SS responded and asked for a final extension of 4 months as contained in exhibit N which the 1st defendant never responded to. In law, silence constitutes an admission or consent. Thus, there was admission by the conduct of the 1st defendant by failing to respond to exhibit N. The 1st defendant is consequently estopped in law and cannot complain that the clamant did not return to duty in January 2016. On this view counsel placed reliance on the Court of Appeal case in Gwani V Ebule (1990) 5 NWLR pt 149, 201 at 211 relying on the Supreme Court in Joe Iga V Amakiri (1976) 11 SC, 1 where it was held that
“By the state of the pleadings and the evidence adduced in support, the appellant by his silence in the circumstance in which a reply is obviously expected, admitted that the respondent on return to Imo State personally and through a solicitor demanded from the appellant payment for the labour be supplied as agreed in exhibit A, this admission lends credence to the respondent’s side of the case” silence in the situation aforesaid leads to an irrebutable presumption of admission by conduct or representation. See also Alhaji Auwalu Bura Hassan V Godwin Obodoeze & Ors CA/J/172/2006.
111. After the expiration of the 4th month final request, the claimant who was already in financial crisis in UK authored exhibit O appealing for the payment of his salaries withheld by the 1st defendant since 2015 and a return ticket to Nigeria to enable him return to duty 30th April 2016.
112. The 1st defendant failed or neglected to react to exhibit O in breach of its obligation to provide the claimant who was already in financial difficulty by the unlawful stoppage of his salary since 2015 with money for return ticket from UK to Nigeria. Accordingly, it would be absurd and illogical for the 1st defendant to turn around and allege that the claimant absconded from duty when it was the 1st defendant that failed, neglected or refused to oblige the claimant a return ticket to Nigeria from UK.
113. In summary and conclusion, the defendants failed to follow the procedure as laid down in the NOUN Act for the termination or removal of claimant from employment, thus all the decisions reached on by the defendants terminating the appointment or removal of the claimant from employment is null and void in law.
114. Also, the purported termination of claimant’s employment on allegation of abscondment upon failure of the 1st defendant to provide the claimant with money for return ticket to Nigeria from UK pursuant to exhibit H is illogical, irregular and unsustainable in law.
115. The defendants at paragraph 4.3 of their written address argued that section 2(b) of the bond training agreement stated clearly that;
‘’That in the event of failure to pass any examination at the end of the course, the Trainee will make no claim upon the University in respect to any expense connected with the said course and maintenance in school of Education, University of Leeds, United Kingdom, which may arise after failure to pass the Examination aforesaid.
116. It is submitted that the crux of claimant’s suit is the purported termination of his appointment in violation of the NOUN Act and condition of service, exhibit DWH. The claimant is not claiming any expenses connected with the expenses associated with his Ph.D study after the 3 years granted by the 1st defendant.
117. The only legitimate expense claimed by the claimant in this suit is the money for his airfare return ticket to Nigeria as undertaken by the 1st Defendant in exhibit H. The money for claimant’s airfare ticket to resume duty in Nigeria after his recall to duty is not connected to the course and maintenance of claimant after the 3 years granted to him to study his course in UK. Submit, the claimant’s obligation to return to duty in Nigeria after the recall was premised on payment of his airfare return ticket to him by the 1st defendant as agreed in exhibit H.
118. The defendants also argued at paragraph 5.4 of their written address that section 6(b) of the National Open University Act 1983 states that;
Nothing in the foregoing sections shall prevent the Council from making regulations for the discipline of other category of workers of the University, as may be prescribed.
119. Contrary to the argument of the defendants that paragraph 6 (b) of the NOUN Act gives power to the Council to make regulations, paragraphs 6 of the NOUN Act deals with the functions of the Senate of the 1st defendant as opposed to the powers of the Council. The defendants with respect misconceived the NOUN Act in this regard.
120. The defendants argued at paragraph 5.8 of their written address made a heavy weather of section 3.2.3 of Exhibit DWA, the Condition of service made in August 2016 after the cause of action had accrued and not applicable to the present suit.
121. Assuming without conceding that exhibit DWA is even applicable in this suit, the scope of DWA cannot be extended beyond its enabling or principal statute (NOUN Act) as settled by the Supreme Court in Governor of Oyo State & Ors V Folayan (Supra). The only disciplinary powers possessed by the Vice-Chancellor in accordance to the Act is to suspend and report to the Council.
122. Any report of a disciplinary committee sent to the Council by the Vice-Chancellor or Management of the 1st defendant would only jump-start the procedure under section 14 of the NOUN Act for the removal of claimant from employment as settled by the Supreme Court in Bamgboye V UniIlorin (Supra) at page 352-353 per Ayoola JSC. The power and procedure to remove claimant from employment is only vested in the Council and as laid down in the NOUN Act. The 2nd defendant having not initiated any disciplinary removal proceedings against the claimant on receipt of the management report in accordance to the NOUN Act cannot validly or lawful terminate the appointment of the claimant.
123. In the circumstance, counsel urged the court to grant the claimant’s reliefs as claimed.
COURT’S DECISION:
124. I have carefully considered the processes filed in this suit as well as the submission of counsel for both sides canvassing the respective position of their clients.
125. The defendant formulated a sole issue for determination, which was further divided into five questions. Also the claimant on his part equally formulated a single issue for resolution. To my mind this suit can be determined on the issue of whether from the evidence adduced before the court the claimant has proved entitlement to any of the reliefs being sought before the court.
126. It is pertinent to point out here that the main grouse of the claimant centres on non-compliance with extant laws by the defendants in terminating his employment. The Claimant instituted this suit purposely to challenge his disengagement from service of the defendants on the ground that the procedure laid down for taking disciplinary action as stipulated in the National Open university Act and the regulations governing the conditions of service of senior staff of the National Open University of Nigeria, exhibit DWH, were not followed and also that he was not given fair hearing.
127. The Claimant’s letters of employment and that of termination of appointment were tendered and admitted in evidence. See exhibits A, B and V. The Claimant is contending that his employment is clothed with statutory flavor and that the termination of his appointment from service of the defendants should be declared null and void of no effect, whatsoever due to non-compliance and adherence with the provision of the National Open University of Nigeria Act, 198, the law establishing the defendants (hereinafter referred to as the Act, and exhibit DWH, regulations governing employment of senior staff of the university.
128. According to the claimant, the defendants failed to follow the procedure as laid down in the Act, for the termination or removal of claimant from the employment of the defendants, thus all the decisions reached on by the defendants terminating the appointment or removal of the claimant from employment is null and void in law. The claimant also stated that the purported termination of his employment on allegation of abscondment upon failure of the 1st defendant to provide the claimant with money for return ticket to Nigeria from UK pursuant to exhibit H is illogical, irregular and unsustainable in law.
129. The defendants maintain that due process was followed in terminating claimant’s employment as provided by the regulations governing the conditions of service of senior staff of the university. It was also stated that the claimant is not entitled to claim refund of air ticket having regard to section 2(b) of the bond on training agreement entered into by the parties to govern the pursuit of doctoral degree by the claimant at Leads University, United Kingdom.
130. The defendants also argued at paragraph 5.4 of their written address that section 6(b) of the National Open University Act 1983, has clothed the defendants with power to make regulations for the discipline of workers of the University, as may be prescribed. The defendants further argued that exhibit DWA made pursuant to section 6 (b) of the National Open University Act is the regulation governing the employment of the claimant and applicable to this case. The defendants also insisted that they complied with the provisions of section 3.2.3 of exhibit DWA in terminating the claimant’s employment.
131. Before proceeding to determine the substantive suit, it behoves on me to first and foremost, ascertain the applicable conditions of service applicable to this suit. This is because the defendants and the claimant have taken divergent views on the relevant regulations governing the employment of the claimant.
132. For the defendants, it is exhibit DWA, that is the regulations governing the disciplinary action against the claimant. For the claimant exhibit DWA is not applicable to this suit because the said conditions of service came into force in August 2016 long after the cause of action in this suit has arisen. The claimant insisted that what governed his conditions of service are the Act, exhibit B, letter of employment and exhibit DWH, the regulations governing conditions of service in operation as at the time of taking disciplinary action.
133. The importance of ascertainment of the actual conditions of service applicable to this suit, cannot be over emphasized. This is because, it is trite law that conditions of service is the bedrock or the pedestal upon which an employee can use to establish his claims, he succeeds or fails based on conditions of service. See Amodu V Amode (1990) 5 NWLR (Pt.150) 356 @ 370; Katto V CBN (1999) 5 S.C. (Pt.ii) 21; (1999) 6 NWLR (Pt.607) 390 @ 405; Okomu Oil Palm Co. Ltd V Iserhienrhien (2001) 6 NWLR (Pt.710) pg 660 at pg 673. It is the conditions of service that determined the rights of the parties under the contract. See Adegbite V College of Medicine of University of Lagos (1973) 5 S.C. 149 @ 162; International Drilling Company (Nigeria) Ltd V Ajijala (1976) 2 S.C. 115 @ 127; Idoniboye-Obu V NNPC (2003) 1 S.C. (pt.1) 40 @ 55/56.
134. It is necessary to state here that the appropriate rules and regulations to govern disciplinary action are the relevant rules and regulation in force as at the time of the infraction which an employee is accused of took place. It is very clear from exhibit P, the letter of invitation, that the infraction for which the claimant is being accused of subject of disciplinary action i.e abscondment from duty’ took place in 2015. In view of this finding it is my view that the appropriate rules and regulation that is applicable to the disciplinary action against the claimant is exhibit DWH, the rules and regulation governing conditions of service of senior staff of the National Open University, made in April 2009 and not exhibit DWA, the regulations governing the conditions of service governing senior staff of National Open University of Nigeria, made in August 2016, while the disciplinary action against the claimant was still in progress.
135. The position I have taken above is fortified by the fact that the disciplinary action against the claimant commenced in April 2016. See exhibits DWG, DWFF1-12, DWG1-20, exhibit TT, and exhibit UU. These exhibits clearly established that the disciplinary committee set up to try the claimant was set up in April 2016 and the proceedings of the committee and recommendations for terminating the claimant’s employment all took place in 2016 when exhibit DWH was in operation. It is only the decision of the 2nd defendant that took place in 2017, during the time of operation of exhibit DWA.
136. Coming to the determination of the substantive suit, the claimant has argued that his employment has statutory flavor as it is governed by the National Open University of Nigeria Act, exhibit B and exhibit DWH, regulations governing senior staff of the National Open University of Nigeria.
137. The defendants have agreed with the claimant that his employment has statutory flavor, thus why in their final written address have conceded for grant of relief one of the claimant’s claim which is for declaration that his employment has statutory flavor. In law what was admitted need no proof.
138. However, I shall take the pleasure to state that in law an employment enjoys statutory flavour when the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions. In the circumstance, they invest the employee with a legal status higher than the ordinary master/servant relationship. The status of employment with statutory flavour, in its own rights, guarantees an employee's right to fair hearing before the termination of his employment. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; Imoloame v. WAEC (1992) 9 NWLR (Pt. 265) 303.
139. The question of whether a contract of employment is governed by statute or has statutory flavour depends on the construction of the contract itself and the relevant statute. The duty to construe an appointment with statutory flavour is the exclusive preserve of the Courts. In determining an employment governed by statute, the procedure laid down in the statute must be complied with. The provisions of the applicable regulations must be followed to the letter as any breach would render the exercise of termination null and void. See Adeniyi v. Governing Council, Yaba College of Technology (1993) 6 NWLR (Pt. 300) 426. If the terms and conditions of a contract of employment of service are specifically provided for by statute or regulations made thereunder, then the contract is protected by statute or, in other words, the employment is one with statutory flavour. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599; Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162; Bamgboye v. University of Ilorin (1999)10 NWLR (Pt. 622) 290; U.M.T.H.M.B v. Dawa (2001) 16 NWLR (Pt. 739) 424; Shitta-Bey v. F.R.S.C. (1981) 1 SC 40; Achibong Um, O Udo v. Cross-River State Newspaper Corporation & Ors (2002) FWLR (Pt. 104) P. 677, Mrs. Fakuade v. OAU Teaching Hospital (1993) 5 NWLR (Pt. 291) P. 24.
140. In the case at hand, it was not in dispute between the parties that the claimant’s employment has statutory flavor. This is ascertainable from the claimant’s letter of employment exhibits A, B, C and D. see also section 14 of the National Open University of Nigeria Act 1983. The combine effect of these exhibits and the provisions of National Open University of Nigeria Act, is to the effect that the claimant’s employment enjoys statutory flavor.
141. With the finding that the claimant’s employment has statutory flavor, this means for such employment to be determined the provisions of the statute regarding the determination of the employment must of necessity be terminated or determined in the way and manner prescribed by the relevant statute and any other manner of termination inconsistent with what the statute prescribed would be null and void. See Iderima v. Rivers S.C.S.C. (2005) 16 NWLR (Pt. 951) 378; Imoloame v. W.A.E.C. (1992) 9 NWLR (Pt.265) 303; Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599; Shitta-Bey v. Federal Public Service Commission(1981) 1 SC 40. Employments that have statutory flavour can only be terminated in the manner allowed by the very statutes that provided for them. see Osisanya v. AfriBank Nigeria Plc (2007) 6 NWLR (Pt. 1031) 565; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290. The only way to terminate a contract of service with statutory flavour is to adhere strictly to the procedure laid down in the statute. See Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290; Olatunbosun v. N.I.S.E.R. Council (1988) 3 NWLR (Pt.80) 25; Longe v. F.B.N. (2010) 6 NWLR (Pt. 1189) 1.
142. The fulcrum of the claimant’s case is that there is noncompliance particularly with the provision of section 14 of the National Open University Act, 1983, (herein after referred to as the Act), which establishes the 1st defendant and exhibit DWH, which resulted in breach of requirement of fair hearing as a procedure laid down in section 14 of the Act, was not complied with by the defendants before terminating the appointments of the claimant.
143. The law is well settled that an employee claiming or seeking for voiding of termination of his employment must be able to convince the court by establishing that the termination of his employment is unlawful. This burden is discharged by the employee by proving that he is an employee of the defendant, the terms and conditions governing his employment, who can appoint and who can remove him from service. In what circumstances the appointments can be determined by the employer and how the terms or conditions of service were breached. See Okomu Oil Palm Co. Ltd. V. Iserhienrhien (2001) 6 NWLR (Pt.710) pg 660 at pg 673; Emokpae v. University of Benin (2002) 17 NWLR, (Pt. 795)pg. 139; Amodu v. Amode (1990) 5 NWLR (Pt. 150) pg. 356; Adeniran v NEPA (2002) 14 NWLR (Pt. 786) pg 30, Oloruntoba-Oju V Abdurraheem (2009) 3 NWLR (Pt.1157) 83.
144. The case of the claimant put forward before the court is that he was employed vide exhibits A, B, C and D and the employment is governed by exhibit DWH and the Act. Thus, according to the claimant his employment is protected by statute and that his employment enjoys special legal status over and above the ordinary common law master and servant relationship. I have in earlier part of this judgment found that both the claimant and the defendant are agreed that the claimant’s employment enjoys statutory flavour. This means the terms and conditions of service governing the employment of the claimant are specifically provided for by statute or regulations made thereunder.
145. With the above finding I am now saddled with the task of considering whether the process adopted by the defendants in terminating the claimant’s employment or service has followed due process of law as encapsulated in the statute investing the claimant with statutory flavour. To put it differently, whether the applicable statute and conditions of services or regulations governing the employment of the claimant were complied with. This is because in determining contract of employment with statutory flavour, the letters of the law must be followed, as any infraction or non-adherence to the procedure laid down would render the exercise resulting in termination null and void of no effect whatsoever. See Adeniyi v. Governing council of Yaba College of Technology (1993) 6 NWLR, (Pt. 300) pg. 426, Olaniyan V University of Lagos (Supra).
146. The claimant’s letter of appointment exhibit B has unequivocally embodied provisions to the effect that appointment of the claimant, is subject to the University law, statutes and ordinances made thereunder and to the conditions governing the appointment of senior staff as may be made by the university council from time to time. Exhibit B has made it very clear that the employment of the claimant is governed by the university Act i.e the law establishing the University and the regulations made thereunder by the Council of the University and in this case exhibit DWH.
147. The provision of section 3.1.1 of exhibit DWH stated that disciplinary proceedings shall be initiated in accordance with the provision of the Act, establishing the National Open University and as may be amended from time to time. Furthermore, in section 3.2.1 of exhibit DWH, it was stated that the power to exercise disciplinary control over members of staff of the university shall, in accordance with the Act, be vested in the vice-chancellor and the university council. It is to be noted that the disciplinary power of the Vice-Chancellor is in respect of suspension and he has a bounden duty to report his action to the 2nd defendant.
148. It is without any doubt that the National Open University Act 1983, exhibit B, the claimant’s letter of employment, exhibit DWH, regulations governing conditions of service of Senior Staff must be construed conjunctively to determine the nature and the terms and conditions of service of the claimant to see whether same have been breached by the defendants.
149. The defendants have strenuously argued that the termination of appointment of the claimant was done in line with the provision of regulation governing the employment of senior staff exhibit DWA. However, I have in earlier part of this judgment found exhibit DWA not to be applicable to the facts of this case as the said regulation was enacted in August 2016, after the process that led to the termination of claimant’s employment has long been commenced.
150. The defendants have also contended that exhibit DWA was made pursuant to section 6(b) of the National Open University Act 1983. This means that exhibit DWA is a subsidiary legislation having been made in the exercise of powers conferred on council by the Act. The law is trite that a subsidiary legislation cannot supersede or make provisions to be in conflict with the parent legislation that gives it effect. This means the life of exhibit DWA will depend on its compliance with the extant provisions of the National Open University Act 1983.
151. Furthermore, it must be made very clear that section 6(b) of the National Open University Act, does nor confer power on the 2nd Defendant to make regulation to govern the removal of the claimant from service of the defendants, when ample provisions have been made in the said Act, for the purposes of removal. To determine or govern termination of employment of the claimant, the provisions of section 6(b) of the National Open University Act is very clear and unambiguous. The 2nd defendant con make regulation but in respect of other employees of the defendants and not the claimant. In view of this the only provision governing employment of the claimant is section 14 of National Open University of Nigeria, Act 1983 and not exhibit DWA. Even if this exhibit is to be applicable, it is only to the extent allowed by section 14 of the National Open University Act 1983, the law that granted life to the said exhibit.
152. In the circumstance of this case the provisions of section 14 of the National Open University Act, 1983, has made ample provisions on procedure for removal of employee of the 1st defendant. This means that the provisions of the Act are the only provisions that can be validly invoked by the defendants to terminate or remove the claimant from office and not any subsidiary legislation that was made pursuant to the provision of section 6(b) of the Act. In the case at hand, the only procedure that can be followed is that laid down in section 14 of the Act. This position follows from a general rule that when a statute directs that a certain procedure be followed before a person can be deprived of a right, such a procedure must be strictly followed otherwise court will declare void any act done not in accordance with the prescribed procedure. This is because where a statute has provided procedure to be followed for carrying out a function or activity it is only such procedure as provided in the statute that must be followed and no other. See Co-op Bank v. A.-G., Enugu State (1992) 8 NWLR (Pt. 261) 528; Aribisala v. Ogunyemi (2005) 6 NWLR (Pt. 921) 212, Bamisile v. Osasuyi (2007) 10 NWLR (Pt. 1042) 225: C.A. Okereke v. Yar Adua (2008) 12 NWLR (Pt. 1100) 95: S.C.
153. It is pertinent to point out here that strict compliance with statutory provision in depriving person of his right is very necessary. When a statute directs that a certain procedure be followed before a person can be deprived of a right, whether in respect of his person, property or office, such a procedure must be strictly followed, otherwise the court will declare void any act done not in accordance with the prescribed procedure. See University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (Pt.363) 376; Adebayo v. O.A.U.T.H.C.M.B. (2000) 9 NWLR (Pt. 673) 585: C.A. even where no special procedure has been laid down by statute for removal of a public officer, the court must always ensure that the principles of natural justice is strictly complied with. See Aiyetan v. NIFOR (1987) 3 NWLR (Pt. 59) 48: S.C.; C.C.B. (Nig.) Plc v. A-G., Anambra State (1992) 8 NWLR (Pt. 261) 528: S.C.
It is a fundamental principle of legality that where an act or course of conduct fails to meet with the requirements prescribed by law, such that the non-compliance renders the act or course of conduct devoid of legal effect, no legal consequences flow from such acts or course of conduct. In other words, where the law provides for the mode or method to be followed in doing an act, that mode, and no other, must be strictly followed. Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22; Okpalauzuegbu v. Ezemenari(2011) 14 NWLR (Pt. 1268) 492; Apapa v. INEC(2012) 8 NWLR (Pt.1303) 409; Galaudu v. Kamba(2004) 15 NWLR (Pt. 895) 31; Inakoju v. Adeleke(2007) 4 NWLR (Pt. 1025) 423; Abubakar v. Nasamu (No. 1) (2012) 17 NWLR (Pt.1330) 407; CIL Risk & Asset Mgt. Ltd. v. Ekiti State Govt.
III.
156. The above preserved criteria was enumerated by the apex Court in the case of Oloruntoba-Oju V Abduraheem (supra). What emerges from the duty imposed on the defendant in satisfying the court of all the above conditions is that according fair hearing is sine qua non, to the process of removal or termination.
157. For proper appreciation, Section 14 of the National Open University Act provides:-
14. Removal and discipline of academic, administrative and technical staff
(1) If it appears to the Council that there are reasons for believing that any person employed as a member of the academic or administrative or technical staff of the University, other than the Vice-Chancellor, should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the Council shall—
(a) give notice of those reasons to the person in question;
(b) afford him an opportunity of making representations in person on the matter to the Council; and
(c) if he or any three members of the Council so request within the period of one month, beginning with the date of the notice, make arrangements—
for a joint committee of the Council and the Senate to investigate the matter and to report on it to the Council; and
(ii) for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter, and if the Council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directions of the Council.
(2) The Vice-Chancellor may, in a case of misconduct by a member of the staff which in the opinion of the Vice-Chancellor is prejudicial to the interest of the University, suspend such member and any such suspension shall forthwith be reported to the Council.
(3) For good cause, any member of staff may be suspended from his duties or his appointment may be terminated by Council; and for the purposes of this subsection “good cause” means—
(a) conviction for any offence which the council considers to be such as to render the person concerned unfit for the discharge of the function of his office or
(b) any physical or mental incapacity which the Council, after obtaining medical advice, considers to be such as to render the person concerned unfit to continue to hold his office; or
(c) conduct of a scandalous or other disgraceful nature which the Council considers to be such as to render the person concerned unfit to hold his office; or
(d) conduct which the Council considers to be such as to constitute failure or inability of the person concerned to discharge the functions of his office or to comply with the terms and conditions of his service.
(4) Any person suspended pursuant to subsection (2) or (3) of this section, shall be on half pay and the Council shall, before the expiration of a period of three months after the date of suspension, consider the case against that person and come to a decision as to—
(a) whether to continue such person’s suspension and if so, on what terms (including the proportion of his emoluments to be paid to him);
(b) whether to reinstate such person, in which case the Council shall restore his full emoluments to him with effect from the date of suspension;
(c) whether to terminate the appointment of the person concerned, in which case such a person shall not be entitled to the proportion of his emoluments withheld during the period of suspension; or
(d) whether to take such lesser disciplinary action against such person (including the restoration of such proportion of his emoluments that might have been withheld), as the Council may determine, and in any case where the Council, pursuant to this section, decides to continue a person’s suspension or decides to take further disciplinary action against a person, the Council shall, before the expiration of a period of three months from such decision, come to a final determination in respect of the case concerning any such person.
(5) It shall be the duty of the person by whom an instrument of removal is signed in pursuance of subsection (1) of this section, to use his best endeavours to cause a copy of the instrument to be served, as soon as reasonably practicable, on the person to whom it relates.
(6) Nothing in the foregoing provisions of this section shall—
(a) apply to any directive given by the Visitor, in consequence of any visitation; or
(b) prevent the Council from making regulations for the discipline of other category of workers of the University, as may be prescribed.
158. The above provisions of section 14 of the Act, is impari material with section 17 of the University of Lagos Act and section 15 of the University of Ilorin Act, which were considered at various times by the apex court in the cases of Olaniyan v Universty of Lagos (supra) and Oloruntoba-Oju V Abdurraheen (Supra).
159. A careful perusal of the provision of section 14(1) of the Act, will revealed that it envisages two situations in which an academic, administrative or technical staff, like the claimant can be removed, it also laid down the procedure to be followed for removal. In the first instance, if it appears to the 2nd defendant that there are reasons for believing that any person employed as a member of the academic or administrative or technical staff of the University, other than the Vice-Chancellor, should be removed from his office or employment on the ground of misconduct or of inability to perform the functions of his office or employment, the person should be given notice of those reasons in question; and afford him an opportunity of making representations in person on the matter to the Council..
160. The second situation envisaged, in section 14(10 of the Act, is if the person (in this case, the claimant), or any three members of the Council so request within the period of one month, beginning with the date of the notice, make arrangements for a joint committee of the Council and the Senate to investigate the matter and to report on it to the Council; and for the person in question to be afforded an opportunity of appearing before and being heard by the investigating committee with respect to the matter, and if the Council, after considering the report of the investigating committee, is satisfied that the person in question should be removed as aforesaid, the Council may so remove him by an instrument in writing signed on the directions of the Council.
161. In the case at hand the claimant is contending that due process was not followed by the defendants in terminating his appointment. While the defendants are contending that they followed due process in terminating claimant’s employment. The question to be resolved is whether the claimant’s employment was in accordance with the conditions of service and the provisions of section 14(1) of the National Open University Act 1983 that provides how removal can be done.
162. I shall at this juncture state that the letter of appointment of the claimant exhibit B has made provision on termination of appointment. While section 14 of the Act talked about removal from office. It is pertinent to point out that the terms ‘termination’ and ‘removal’ were not defined by either exhibit B or the Act. What is very clear is the fact that differing provisions were made with varying grounds for the exercise of the respective powers and rights. Under exhibit B either party can terminate the employment by giving three months notice or payment of salary in lieu of notice. In regard to the Act section 14 has vested in the 2nd defendant discretionary power of removal of any person found guilty of misconduct, after the appointee has been given the opportunity of replying or responding to the to the grounds alleged against him. See Olaniyan V University of Lagos (supra).
163. It is apt at this point to refer to the letter of termination of claimant’s employment exhibit V to see the nature of the action taken against the claimant and whether it is in line with extant rules and regulations. Exhibit V is the letter of termination of appointment , it reads
NATIONAL OPEN UNIVERSITY OF NIGERIA
REF: NOUN/PER 0132/VOL.II/59
29th August, 2017
Mr Felix Kayode Olakulehin
RETRIDAL
National Open University of Nigeria,
14/16 Ahmadu Bello Way,
Victoria Island,
Lagos.
Dear Mr. Olakulehin
TERMINATION OF APPOINTMENT
This is to inform you that the University Governing Council at its 49th Meeting held on Friday 11th August, 2017 considered the report of Management on your abscondment from duty and approved the termination of your appointment for services no longer required with effect from 1st June, 2015 being the date you effectively absconded from duty.
You are therefore required to hand over all the University’s property in your possession, including your staff identity card, to Director, RETRIDAL, before your departure.
The Bursar is by a copy of this letter, requested to pay you one month salary in lieu of notice in line with your condition of appointment
Thank you
John J. Ubaji
Deputy Registrar (HR/SS)
For: Registrar
164. The letter of termination exhibit V, which was reproduced clearly stated that the University Governing Council (2nd defendant) at its 49th Meeting held on Friday 11th August, 2017 considered the report of Management on the claimant’s abscondment from duty and approved the termination of the claimant’s appointment for services no longer required with effect from 1st June, 2015 being the date the claimant effectively absconded his duty. The letter of termination also stated that the Bursar is by a copy of exhibit V, requested to pay the claimant one month salary in lieu of notice in line with the condition of appointment i.e exhibit B (letter of appointment).
165. The content of exhibit V is very clear and unambiguous, it stated that the 2nd defendant considered the report of the management committee of the 1st defendant on abscondment from duty by the claimant and approved termination of claimant’s appointment from the date of the alleged abscondment which was put at 1/6/2015. The approval of termination was given on 11/8/2017 and the termination was communicated to the claimant vide exhibit V letter dated 29/8/2017. Exhibit V reproduced above disclosed a confused situation. This is because in the said exhibit it was stated the claimant was terminated on the basis of abscondment and at the same time he was terminated for service no longer required.
166. What the action of the defendants depicted in exhibit V, is that the 2nd defendant gave approval of termination of claimant’s employment retrospectively. It also shows that the 2nd defendant after considering report of the management committee did not notify the claimant of the reasons for believing that the claimant committed misconduct that will warrant his removal from service. It is also clear that the claimant was not given opportunity by the 2nd defendant to defend himself as required by section 14(1) of the National Open University of Nigeria Act, 1983.
167. The above narrated scenario, as depicted in exhibit V, the letter of termination of appointment of the claimant, revealed in unmistakable terms that the defendants did not follow due process in terminating the claimant’s appointment. I am in total agreement with the counsel for the claimant when he submitted that the investigation report of the approved constituted disciplinary committee by the Vice Chancellor of the University vide exhibit DWD dated 13/4/2016, is what should have jump start the disciplinary procedure after the 2nd defendant must have considered same and it appears that the claimant has committed acts to warrant his removal from office. Nay! That did not happened, the 2nd defendant after considering the report laid before it at its 49th meeting ratified the decision taken by the disciplinary committee. The action of the defendants is in total contravention of the provision of section 14(1) of the Act and thereby vitiated whatever action taken by the defendants in terminating the claimant’s employmenr. See exhibit V.
168. I have no doubt in my mind that the 2nd defendant’s ratification of recommendation for termination of appointment of the claimant without notifying him of the reasons for and giving him opportunity to appear before the 2nd defendant to defend himself is a clear violation of the principle of natural justice encapsulated in the old age long legal principles of natural justice, audi alterem partem and nemo judex in causa sua, this has rendered decision of the 2nd defendant null and void and of no effect whatsoever. Exhibit V, has really exposed the defendants despite their penchant insistence on following due process as provided in the regulations governing conditions of service of the 1stdefendant.
169. Having critically examined exhibits DWD, DWFF1-12, DWE1-12 and DWG1-20, I am left with no choice than to come to the conclusion that all the loud noise made by the defendants in their attempted nisus to convince the court in complying with due process is a hoax, there is no truth in obeying the law in the process used by the defendants to terminate the employment of the claim which enjoys protection of the law in section 14 of the National Open University Act.
170. Exhibit DWFF1-20 which comprised of several documents such as invitation of the claimant to appear before management committee, request for extension of study leave and approvals of same and internal memo dated 17/10/2016 on the decisions taken at the 66th regular meeting of the University Principal Officers held on Thursday, 19th May 2016, in the Vice-Chancellor’s conference room. At the said meeting it was decided as per paragraph 7 iv. on Mr. Felix Kayode Olakuleyin, as follows:-
‘’The case of Mr. Felix Kayode Olakuleyin was duly considered. Members noted the recommendations of the Committee set up to look at the case of abscondment from duty levelled against him for failing to report back to duty after several extension of his study leave at different times.
After extensive deliberations, it was decided that the recommendations of the Committee to terminate his appointment to upheld and to further communicate the decision to the University Council for ratification.’’
171. It is clear from the above excerpt from the 66th meeting of principal officers of the University that the disciplinary Committee which the Vice-Chancellor approved its constitution in exhibit DWD, met behind the claimant and took decision by recommending termination of his appointment. Exhibit DWE1-12, further support this view the internal memo dated 8th November 2016, also stated that the management at its 66th Regular meeting, referring to exhibit DWFF1-20, on 19th May 2016, did consider the report of the committee and upheld the recommendation that the claimant’s appointment with the 1st defendant be terminated for services no longer required to be ratified by council.
172. These exhibits clearly revealed that the decision on termination of claimant’s employment was taken before the claimant was even invited to appear before the disciplinary committee as per exhibits P, R, TT, and UU. This means that as at August 2016, when the claimant appeared before the disciplinary committee as per exhibits P, R, TT and UU, a decision had already been taken before then, by the committee recommending termination of claimant’s employment. Therefore, the convening of the meeting when the claimant appeared in August 2016 for purposes of fulfilling all righteousness.
173. I must shudder at this juncture to observe that the entire procedure adopted by the defendants in terminating claimant’s appointment is a kangaroo procedure that is alien to the law establishing the University and making procedure to be followed in taking disciplinary action against the claimant. It is unfortunate that this is happening at a citadel of learning where excellence in conduct of proceeding in whatever ramification is expected. The defendants have by what they did jettison the path of regularity to trade on the path of ignominy, this must be condemned in the strongest terms..
174. Having regards to the evidence and exhibits tendered, I have come to the conclusion that all the actions taken by the disciplinary committee as from 1/6/2016, were in bad faith because a decision had been taken to terminate claimant’s employment before the issuance of letters of invitation for him to appear before the committee.
175. I must state that the action of investigation for the committee set up by the management which the Vice Chancellor approved as per exhibit DWD, though is a welcome development, if it was for finding the truth. However, what emerges was discretion of the extant law, rules and regulations governing the employment of the claimant. What happened on 11/8/2017 at the 49th meeting of the 2nd defendant was a clear infraction of the claimant’s right to be heard on the report of the investigation committee, which at best could be described as administrative measure put up by the management in finding the truth.
176. The vice-chancellor who approved the setting up investigation committee will be right to do so to investigate any allegation. However, the report of the committee approved by the Vice-Chancellor to investigate allegation of abscondment from service which is a misconduct cannot be considered by the council 2nd defendant and based on that report determined the employment of the claimant without having making the report available to the claimant and allowing him to make representation on the report. The 2nd defendant in relying on the report of the management committee to determine the employment of the claimant abdicated its duty imposed on it by section 14 of the Act, in not serving the claimant or informing him of the allegation levelled against him.
177. A lot of hues and cry have been made on alleged abscondment of the claimant as the basis of determination of the claimant’s employment, though the claimant has vehemently resisted and insisted that he never absconded while studying for a PhD, it is illogical, unreasonable and irregular. It is to be noted that this court does not have the vires to consider whether the claimant absconded from duty or not what this court is to determine is to see that laid down procedure by the law is complied with or not.
178. It is only when the report is to be implemented by the 2nd defendant that compliance with rules of fair hearing as in audi alterem parten and nemo judex in causa sua will come to play. That is what the provisions of section 14 of the National Open University Act is all about, however, it is disheartening that the 2nd defendant decided to ignore the law and adopted the procedure that denied the claimant of knowing the report against him and giving him opportunity to depend himself before the council (2nd defendant), the failure by council to strictly adhere to the provision of section 14 of the Act has rendered termination of the claimant’s employment void.
179. The defendants seem not to grasp the purport of the provision of section 14 of the Act. They concentrated on compliance with the provisions of exhibit DWA which I have found not to be applicable to this suit. In any event the provisions of the Act did not recognise any management committee on discipline. Any disciplinary committee which does not have the blessing of the 2nd defendant in its establishment can only serve as a fact finding committee and cannot come to a decision on employment of the claimant as it lacks that vires.
180. The defendants in their further quest to convince the court of complying with due process refer to exhibit V, where the Bursar has been directed to pay claimant one month salary in lieu of notice. It is pertinent to point out that the letter of claimant’s appointment in paragraph 3(d) unequivocally provided that the appointment of the claimant may be terminated by either party by giving three months’ notice or payment of one month salary in lieu.
181. There is no doubt that the claimant was not given three months’ notice of termination and he was also not paid one month’s salary in lieu of notice as required by the letter of employment. The defendant from the content of exhibit V, only directed payment of one month salary to be made to the claimant, but there is no evidence before me that it was paid. The law is well settled that payment in lieu of notice must be made contemporaneously with termination. That is to say the payment is made at the very time the notice of the termination is given otherwise it will be invalid. Once an employer has decided to pay salary in lieu of notice it must be paid to the claimant at the time of termination of the contract of employment. It is not sufficient that the letter of termination, has offered to pay salary in lieu as in this case. As there was no evidence of payment made to the claimant in lieu as at the time of termination, the termination was wrongful for non-contemporaneous payment of salary in lieu of notice. See Chukwumah V Shell (1993) 4 NWLR (Pt.289) 512.
182. The case of the defendant was made worse with the termination made retrospectively. It is evident from exhibit V the termination of appointment was done on 11/8/2017 to take effect from 1/6/2015, that is to say the termination was back-dated with more than two years, this is wrong in law termination must be with immediate effect or in future and cannot be retrospective. The termination of the claimant’s employment retrospectively has rendered the entire action improper and in disregard to the law. See CBN V Igwilo (2007) 14 NWLR (Pt.1054) 393. Even if the termination is to the valid it will take effect from 29/8/2017 the date of notification of the termination was given to the claimant.
183. The defendants have also insisted that the claimant absconded from duty, this court is not a forum where the decision of the defendants can be reviewed. The duty of this court is to inquire whether the procedure laid down by law has been followed or not and not to sit on appeal on findings and decisions of the defendants.
184. The claimant has also contended that his termination having not been made within three months after his suspension as in exhibit U, the termination was void. The defendants on their part have argued that they never suspended the claimant from work. I have earlier in this judgment hold that the claimant was in fact suspended as per exhibit U what remain to be seen is whether the suspension was proper. Section 14 (2) of the Act has clearly vested the power of suspension in the hands of the Vice-chancellor and report same to 2nd defendant. Exhibit U is a letter to the claimant directing him to stay away from work pending the determination of the case of abscondment. This has clearly shows that the claimant was in fact suspended from work. It is without doubt that exhibit U was issued by the Registrar and not by the Vice-Chancellor as required by law. This means even the suspension of the claimant did not follow due process. From 14/10/2016 to 29/8/2017, when the claimant was notified of termination of appointment is a period of 10 Months, this goes contrary to section 14(3) of the Act that required decision to be made within three (3) Months of suspension. Therefore, the failure of the 2nd defendant to comply with section 14(3) of the Act in suspending the claimant from duty and refusal to take action with three months as required by law has rendered the termination of claimant’s employment void.
185. The claimant is also claiming refund of N178,000.00 as return tickets from London to Nigeria. The defendant has argued claimant is not entitled to any refund. I side with the defendants on this point. The claimant having not shown that he has completed his studies and passed the exam for award of doctorate degree for which he was sponsored to pursue cannot without evidence of obtaining the PhD be entitled to refund, this head of claim fails and same is refused.
186. From all I have been saying above, the case of the claimant succeeds in part, it follows that claimant must be entitled to some reliefs. Where, in an employment clothed with statutory flavour, a court holds that the employment was unlawfully determined; the claimant must be entitled to reinstatement and payment of arrears of salaries from the date of the unlawful termination till actual reinstatement, as it is deemed that, he never left service. See COMPTROLLER GENERAL OF CUSTOMS & 3 ORS. V COMPTROLLER GUSAU [supra], and NEW NIGERIA NEWSPAPERS LIMITED V AYOTEBI (2013) LPELR-21489 (CA) 41, A-B.
187. In view of the foregoing, the Claimant is entitled to be reinstated back to his employment with immediate effect. For avoidance of doubt the orders of the court are:
I. It is hereby declared that the Claimant’s employment with the 1st Defendant enjoys statutory flavour.
II. It is hereby declared that the purported termination of the Claimant’s appointment as a Research Fellow 1/ Lecturer 1 in the Regional Training and Research Institute for Open and Distance Learning (RETRIDAL) department of the 1st Defendant by a purported letter dated 29th August, 2017, exhibit V without affording the Claimant fair hearing is null and void and of no effect whatsoever.
III. It is hereby declared that the Claimant’s appointment as a Research Fellow 1/ Lecturer in RETRIDAL department of the 1st Defendant is still valid and subsisting.
IV. An Order is hereby made nullifying and setting aside the Defendant’s purported letter of termination with reference number NOUN/PER/0123/VOL.11/59 dated 29th August, 2017.
V. An Order is hereby granted setting aside the purported report of the 1st Defendant on the Claimant considered and approved by the 2nd Defendant at its 49th meeting held on Friday 11th August, 2017.
VI. The claimant is hereby reinstated back to his position The defendants are hereby ordered to pay to the Claimant all his salary as from June 2015 to date and subsequently until his employment is legally determined.
VII. Cost is assessed at N500,000.00 [Five Hundred Thousand Naira only] is awarded in favour of the claimant and against the defendants.
VIII. The defendant is hereby given a grace of 30 days from the date of this judgment within which to comply with the monetary aspect of the judgment of the Court. While reinstatement is with immediate effect.
188. Judgment is entered accordingly.
Sanusi Kado,
Judge.
REPRESNTATION:
A.. Olujinmi, Esq; for the claimant appearing with F. O. Obec, Esq;
Eloka J. Okoye, Esq; for the defendants appearing with Timilehin Arokoye, Esq;